1817. Hunter V. Bryant. expectation that in addition to the provision for his widow, his estate was to be made liable for this heavy debt. First, the condition of the bond holds out the alternative of making provision by will, in satisfaction of it. And, although we do not accede to the construction contended for, that this ne cessarily extended to his whole life, but think it was, in legal strictness, limited by the latter words of the condition to his death within one year, yet the words in the prior part of the condition "within the term of his life," were well calculated to excite in the mind of a man whose habits of thinking had not been corrected by technical exercise, an idea that he was legally, as well as conscientiously, complying with his obligation when executing this will. Secondly. The principal part of his bounty to his wife consists of the one half of the rest and residue of his estate, with a contingent devise over to her of the other half on the decease of his son; thus disposing of the whole, and giving to her the one half of the natural and ordinary fund for the payment of this bond; a disposition of his effects that would have been idle under the supposition that this bond was to be exacted of his estate. But, in the actual state of the rights and interests of these parties, at least in the view which this court takes of them, this question becomes a very immaterial one. For, the complainant, Bryant, acquires nothing of the estate of Andrew Hare, under the will of Mrs. Hare, but that part of the personality which she acquired under the residuary bequest of her husband. And this being unquestionably the fund first to be applied to the payment of debts, it must, in his hands, be first subjected to the payment of this debt. It is only as connected with Mrs. Hare's acquiescence or election to take under the will that the question of satisfaction becomes material. In which case we should be bound to dismiss the bill altogether, on the ground of satisfaction. But here we are of opinion, that the evidence of election is not sufficient to bind Mrs. Hare. That she was perfectly at liberty to reject the provision under the will of her husband, and rest alone on her bond, is unquestionable. And if this election was never deliberately made in her lifetime, there can be no reason for denying the extension of it to her representative, Bryant. He now makes that election in demanding the payment of this bond, and we conceive that nothing unequivocally expressive of that election has before occurred, at least nothing that ought to preclude it. If the will had expressly given the property devised to her in satisfaction of this bond, she would have been put on her guard, and more cautious conduct might have been required of her; but, although a court may raise the implication, she was not bound to do it, and her mind was not necessarily led to an election. It is true, that in her will she notices the property acquired under her husband's will; but this is perfectly consistent with the idea that she took, under her husband's will, something in addition to her interests under the bond independent of that will. We are therefore of opinion, that the complainant is entitled to satisfaction of this bond; and as in the course of events, the interests of 1817. Hunter V. Bryant. 1817. Hunter V. Bryant. the obligees, who stood in the relation of trustees to Margaret Bryant, have become hostile to those of the cestui que trust, he must have the aid of this court to enforce it. The only questions, then, are, how the bond shall be stated, and how the money shall be raised. And here the question occurs, on the allowance of interest during the husband's lifetime. On this subject the majority of the court is satisfied, that actual maintenance is equivalent to the payment of a sum secured for separate maintenance. It is true, the husband cannot claim his election; but, if the wife and her trustees never demand it, it is considered as an acquiescence, or waiver, on their part, and this court will not afterwards enforce payment. [2 P. Wms. 84. 3 P. Wms. 355. 2 Atkin. 84. 4 Bro. Ch. Cas. 326.] In the present case, there is nothing in the bond that holds out the idea of making this interest an accumulating fund; no demand of a settlement was ever made; the parties lived together in perfect harmony, and the wife was maintained in a style fully adequate to the provision stipulated for. This bond was intended as a provision against the husband's inability or unwillingness to maintain his wife; but whilst steadily pursuing his avocation as a merchant, and faithfully discharging his duties as a husband, the reasonable conjecture is, that it was thought really best for his family not to withdraw so large a sum from his small capital. If the trustees or the wife had desired that the settlement should be made in pursuance of the condition, they might have demanded it, and enforced a compliance at law or in equity. We, therefore, think that interest on the bond is not to be computed during the husband's life. The only remaining question is, how the money is to be raised, or on what funds the bond is to be charged. And here there can be no doubt that the first fund to be exhausted is the residue of the estate; and of this, the personal residue first in order. This, of course, sweeps all that part of Andrew Hare's estate that Bryant acquired under the will of Mrs. Hare; and included in this we find Hustin's bond for 3,272 dollars 86 cents. The one half of this bond was decreed in the court below to be an equitable offset against Hare's bond. All we know on the subject of this offset is extracted from the confessions of the complainant himself. From these it appears that the testator, Hare, held a bond of Hustin's for the delivery of a quantity of pork. This bond it was purposed to exchange for one for the delivery of a quantity of tobacco, and the testator, in his lifetime, despatched the complainant as his agent with instructions to effectuate the exchange. To enable him to do so, he assigned the bond for the pork to the complainant, instead of executing a common power of attorney. Whilst absent for this purpose, and before he had completed the arrangement with Hustin, Hare died; and Bryant proceeded no farther, until he had consulted Mrs. Hare and Mr. Todd, as executrix and executor of the will of Hare, on the propriety of proceeding. "On conferring with Mrs. Hare, and advising with Mr. Todd," to use Bryant's 1817. Hunter V. Bryant. 1817. Hunter V. Bryant. own equivocal language, he effected a negotiation, and having received the tobacco, took it down to New-Orleans, where, not meeting with a ready sale, he deposited it with one Moore, the factor and correspondent of Hare, in his lifetime. He took Moore's receipt for the tobacco so deposited, and all that we are told of the transaction subsequently is, that at the instance of Mr. Todd, he assigned that receipt to some house under the firm of John Jordan & Co., but who they were, or what finally became of the tobacco, the case does not show; and, for aught that appears to us, the proceeds of that adventure may at this day lie in the hands of the factor, subject to the order of the executor of Andrew Hare. The court below thought these facts sufficient to charge Mrs. Hare with one half the amount of Hustin's bond. But this court are of opinion that the evidence is not sufficient for them to decide finally on the subject. Although it be generally true, that the exccutor, who by taking an inferior security or unreasonably extending time of payment, brings a loss upon his testator's estate, shall himself be liable, yet there are many objections to applying that principle to this case. The executor, who takes charge of the affairs of a man in trade, must necessarily, on the winding up of his affairs, be allowed a reasonable latitude of discretion; and in general, where there is manifest fidelity, diligence, and ordinary judgment displayed, this court will always with some reluctance enforce the rigid rules which courts have been obliged, for the protection of estates, to impose upon the conduct of executors. In the principal case the language of Thomas Bry |